Office
of the Attorney General of Texas

Re: Whether
a municipal employee may serve as a member of the city commission (ID#
39468)

Dear Senator
Lucio:

You have requested
our opinion regarding whether a municipal employee may serve simultaneously
as an elected commissioner of the same municipality.

The individual
in question is a member of the fire department of the City of McAllen,
and also serves as an assistant fire marshal. You indicate that, as a city
commissioner, he would have direct supervisory authority over the city
manager, who in turn is the direct supervisor of the fire chief. Thus,
a city commissioner in McAllen is in the direct chain of supervision over
a member of the fire department.

This office
has frequently held that the "self-employment" portion of the
common-law doctrine of incompatibility prohibits "an individual from
holding an office and at the same time holding an employment that is subordinate
to the office." Letter Opinion No. 94-070
(1994); Attorney General Opinion DM-55
(1991). As long ago as 1975, the attorney general said that a teacher is
barred from serving as a member of the board of trustees of the district
in which she is employed. See Attorney General Letter Advisory No.
114 (1975). Thus, it is clear that an employee of a municipal fire department
may not simultaneously serve as a city commissioner of the same municipality.(1)

You also ask
whether the individual in question may become a candidate for the position
of city commissioner without resigning his employment with the fire department.
Two constitutional provisions bar certain elected local officers from remaining
in office after announcing their candidacy for a second office with more
than one year remaining in their original term. See Tex. Const.
arts. XI; § 11, XVI, § 65. However, these provisions
apply only to elected officers; they have no application to employees.
Consequently, there is no impediment to the individual of whom you inquire
becoming a candidate for city commissioner. Should he be elected and take
the oath of office, however, he will automatically vacate his municipal
employment. See Centeno v. Inselmann, 519 S.W.2d 889 (Tex. Civ.
App.--San Antonio 1975, no writ).

S
U M M A R Y

An employee
of a municipal fire department may not simultaneously serve as a city commissioner
in the same municipality, but he may become a candidate for the position
without resigning his municipal employment.

Yours very truly,

Rick Gilpin
Deputy Chief
Opinion Committee

Footnotes

1.
Since we conclude that the situation you describe is proscribed by virtue
of common-law incompatibility, we need not determine whether an "assistant
fire marshal" holds an "office" for purposes of article
XVI, section 40, of the Texas Constitution. See Letter
Opinion No. 93-027 (1993); Attorney
General Opinion DM-212 (1993).